On the morning of 22 January 2004, Chea Vichea, a famous and popular labour union leader, was gunned down while reading a newspaper by a roadside newsstand in Phnom Penh. The gunman rode off on a motorcycle driven by another man. Var Sothy, the owner of the newsstand, was the only other person at the scene of the murder. A week later, the police paraded Born Samnang and Sok Sam Oeun at a press conference as the killers. The case was sent to the Phnom Penh court for a thorough investigation by a judge before trial.
On 19 March 2004 Hing Thirith, the investigating judge, dismissed the case for lack of evidence and due to irregularities in Born Samnang’s confession to the police. He ordered the release of the two accused. The next day the prosecutor appealed against his order and on March 22 Hing Thirith was removed and transferred to a court in the remote province of Stung Treng, bordering Laos. On July 1 the Appeal Court upheld the prosecutor’s appeal and ordered a new investigation. Born Samnang and Sok Sam Oeun remained in detention.
On 1 August 2005 Born Samnang and Sok Sam Oeun were sentenced by the Phnom Penh court to 20 years in prison. The conviction received a lot of criticism. It was based entirely on the statements of prosecution witnesses, who were not made available for questioning by the defence counsel during the trial, and was given despite the fact that each man had an alibi. Var Sothy, the key eyewitness, did not appear in court; nor were witnesses ordered by the court to appear before it when they failed to show. The accused filed an appeal against the conviction.
One year later, while the appeal was pending, Var Sothy made a notarised statement from Thailand. The 10 August 2006 statement calls “for the release of Born Samnang and Sok Sam Oeun so they can find freedom again because they are not the real killers”. It describes in detail the circumstances surrounding the killing, including the real killer and his accomplice, their activities, the motorcycle they had been riding on, the actual shooting, the witness’ immediate action, ensuing police action, and other developments unfolding after the crime.
In her statement Var Sothy repeatedly says that as she was the sole witness to the crime, she feared being killed. She says that, “I refused to go [to the police station] because… I was afraid that they would kill me also…” She did not tell the police the truth, she states, because, “I believed that if I were to tell the truth, I would endanger my life and face death because they want to eliminate all proof.” She alleges that the Phnom Penh police commissioner responsible for the investigation pressured her to “remain silent and answer only according to what I was told and say that the two [accused] are the killers of Mr. Chea Vichea”. After that she found that she was always shadowed by the police, and she says that one of the real killers returned to the newsstand a month later: “He stared at me, then went back to his motorbike and took off without buying anything.”
Finally, Var Sothy fled the country and sought asylum in Thailand:
“Since the fake killers are sent to jail, the real killers go free and justice can no longer be trusted, if I were to try to remain in Cambodia, I believe that I would face death, and I would not have the opportunity to tell the truth to the nation and the international community about the killing of Mr. Chea Vichea, as well as the arrest of innocent people instead of the real killer. With great regret, I decided to leave Cambodia and ask the UN for refuge in Thailand.”
The statement was made public and widely reported a few days before the appeal against the conviction was to be heard on October 6. The hearing was again postponed.
Var Sothy’s experience is by no means unique. One of the reasons that Cambodian courts fail to obtain the cooperation of witnesses is the fear of death. This fear deeply inhibits the search for truth and delivery of justice in Cambodia. As in the Chea Vichea murder case, the common result is the conviction of innocent persons.
Cambodia urgently needs a witness protection law. The Asian Human Rights Commission calls on the Cambodian government to enact such a law and put in place a witness protection scheme, administered by an independent office, at the nearest possible time.
What important issues need to be considered in enacting such a law? The sister organisation raised many in a report on the nascent witness protection programme in neighbouring Thailand (Protecting witnesses or perverting justice in Thailand, article 2, vol. 5, no. 3, June 2006). These include that:
1. Key terms must be clearly defined to facilitate enforcement;
2. Witnesses as well as victims and defendants must be entitled to protection;
3. There must be clearly defined criteria for offering and giving such protection;
4. The witness protection office must be independent from the police and be given adequate power, staff and resources;
5. Witness protection staff must be given rigorous training;
6. Legal and medical professionals must also be given training on witness protection;
7. Courtrooms must have special provisions to protect the identities and physical security of vulnerable witnesses;
8. The code of criminal procedure must provide for witness protection; and,
9. The public must be well informed about protection measures.
The Asian Human Rights Commission urges donor governments, United Nations agencies, international aid groups, and the wider international human rights community to take up these concerns with the government of Cambodia and assist it through technical and financial means to put in place a witness protection law and scheme at the nearest possible time, so that other witnesses to crimes like Var Sothy do not have to flee the country in order to live, and tell the tale.
